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The article is set forth here exactly as it appeared in Baltimore OUTloud. An updated version that includes citations and links to the relevant authorities can be found at this link. Moreover, the discussion does not take into account the Supreme Court’s later decision in Obergefell v. Hodges, which struck down bans on same-sex marriage.
The Internal Revenue Service has now announced that same-sex couples married in a jurisdiction that permits such marriages will be treated as married for federal tax purposes, even if they live in a jurisdiction that does not recognize such marriages. But what about such couples’ recognition as married for purposes of state income taxes? The question is of concern not only to individuals, but to their employers which must determine proper state income tax withholding. In addition, employers which are in many instances expanding spousal coverage for same-sex partners under employee benefit plans will need to know the characterization of such coverage for purposes of state taxes. For example, an employer that provides spousal health coverage to a same-sex employee may be required to include the cost of such coverage in the employee’s state Form W-2 or equivalent, even though it would be excluded from the employee’s income for federal tax purposes.
Many would no doubt assume that whether a state will treat couples as married for tax purposes depends on whether it would recognize their marriages generally. However, that may not necessarily be the case. The issue arises because most states use a federal definition of income (either federal adjusted gross income or federal taxable income) for purposes of calculating state income taxes. Legally married same-sex couples will now file federal returns (and calculate federal adjusted gross income and federal taxable income) using either joint filing status or married filing separately status. Thus, the question arises whether married same-sex couples may (or are required to) use such status at the state level, even in states that do not otherwise recognize their marriages.
In the following states, the issue of treating same-sex couples as married for state income tax purposes does not arise, either because the state has no income tax or because the state taxes only interest and dividends and does not provide a separate rate structure for single and married taxpayers:
• Alaska • Florida • Nevada • New Hampshire • South Dakota • Tennessee • Texas • Wyoming
In each of the following states, same-sex married couples will now file state income taxes as married, because the state allows same-sex marriage:
• California • Connecticut • Delaware • District of Columbia • Hawaii • Illinois • Iowa • Maine • Maryland • Massachusetts • Minnesota • New Jersey • New Mexico • New York • Oregon • Rhode Island • Vermont
In Oregon, same-sex married couples will now file state income taxes as married, because although same-sex marriages cannot be performed in Oregon, Oregon recognizes same-sex marriages from other states.
In the following states, same-sex marriage is not recognized and there is no conformity between federal and state taxes, so same-sex married couples will have to file state taxes as if they were single:
• Alabama • Arkansas • Michigan • Mississippi • Pennsylvania
The following states do not recognize same-sex marriage, but conform to federal tax law:
• Arizona • Colorado • Georgia • Idaho • Indiana • Kansas • Kentucky • Louisiana • Missouri • Montana • Nebraska • North Carolina • North Dakota • Ohio • Oklahoma • South Carolina • Utah • Virginia • West Virginia • Wisconsin
The law in each of them is discussed in more detail below:
Arizona statute § 43-309 provides as follows: “If a husband and wife are required to file a return pursuant to section 43-301, they may file a joint return under the following conditions[.]”
Because there is no definition of “husband” and “wife” that cross-references the Internal Revenue Code, same-sex married couples must file Arizona state taxes as if they were single.
Colorado has a constitutional ban on same-sex marriage (although it recognizes civil unions). However, C.R.S. 39-22-103(11) states as follows: “Any term used in this article, except as otherwise expressly provided or clearly appearing from the context, shall have the same meaning as when used in a comparable context in the internal revenue code, as amended, in effect for the taxable period.”
Based on this language, the Colorado Department of Revenue has ruled that legally married same-sex Colorado couples must file their Colorado taxes as married.
Nothing in Georgia statutes specifically says who is permitted to file a joint return. However, given that there is a state constitutional ban on recognition of same-sex marriage in Georgia, the Georgia Department of Revenue has announced that same-sex married couples must file Georgia state taxes as if they were single.
Idaho statute § 63-3031 states as follows: “A husband and wife may make a single return jointly… Husbands and wives shall, if they elect to file a joint return for federal purposes, be required to file a joint return for state purposes.”
Because there is no cross-reference to the Internal Revenue Code for the definition of “husband” and “wife,” same-sex married couples must file Idaho state taxes as if they were single.
Although Indiana does not have a separate rate structure for married couples, marital status is nevertheless used in determining the number of exemptions, the taxability of employer-provided health care, and the like. The Indiana Department of Revenue site indicates that:
• If you file a single federal income tax return, you must file a single Indiana individual income tax return.
• If you file a joint federal income tax return, you must file a joint Indiana individual income tax return.
However, because there is no cross-reference in Indiana statutes to the Internal Revenue Code for the definition of “husband” and “wife,” the Indiana Department of Revenue takes the position that same-sex married couples must file Indiana state taxes as if they were single.
Kansas statute § 79-32,109 states as follows: “Any term used in this act shall have the same meaning as when used in a comparable context in the federal internal revenue code.” This would presumably apply for purposes of the definitions of “husband” and “wife” in § 79-32,115, which states as follows: “If both husband and wife are residents, and if their federal taxable income is determined on a joint federal return, their Kansas taxable income shall be reported and taxed on the basis of a joint Kansas income tax return.”
Nevertheless, because the Kansas Constitution prohibits the recognition of same-sex marriage, the Kansas Revenue Department has now ruled that same-sex married couples must file Kansas state taxes as if they were single.
Kentucky statutes § 141.020 states as follows: “The determination of marital status for the purpose of this section shall be made in the manner prescribed in Section 153 of the Internal Revenue Code[.]”
However, given that there is a state constitutional ban on recognition of same-sex marriage in Kentucky, Kentucky Tax Alert, Kentucky Department of Revenue, November 2013, ¶203-062 takes the position that same-sex couples must file Kentucky state taxes as if they were single.
The Kentucky Department of Revenue’s position will presumably have to be revisited unless the appeal of the decision striking down the ban on recognition of out-of-state same-sex marriages is successful.
Louisiana statutes § 10 states that, “A husband and wife may make a single return jointly.” It does not include a cross-reference to the Internal Revenue Code for the definition of “husband” or “wife,” nor does it reference federal filing status. Accordingly, the Louisiana Revenue Secretary has taken the position that same-sex married couples must file Louisiana state taxes as if they were single.
Missouri statutes § 143.091 state as follows: “Any term used in sections 143.011 to 143.996 shall have the same meaning as when used in a comparable context in the laws of the U.S. relating to federal income taxes, unless a different meaning is clearly required by the provisions of sections 143.011 to 143.996.”
This would presumably apply for purposes of the definitions of “husband” and “wife” in § 143.031, which states as follows: “A husband and wife who file a joint federal income tax return shall file a combined return. A husband and wife who do not file a joint federal income tax return shall not file a combined return.”
Notwithstanding the fact that there is a state constitutional ban on recognition of same-sex marriage in Missouri, Missouri Gov. Jay Nixon has issued an executive order permitting married same-sex couples to file joint Missouri state tax returns.
Montana statutes § 15-30-142 states as follows: “In accordance with instructions set forth by the department, each taxpayer who is married and living with husband or wife and is required to file a return may, at the taxpayer’s option, file a joint return with husband or wife even though one of the spouses has neither gross income nor deductions.”
As well, “If a joint return has been filed for a tax year, the spouses may not file separate returns after the time for filing the return of either has expired unless the department consents.”
Because there is no cross-reference to the Internal Revenue Code for the definition of “married,” “husband,” “wife,” or “spouses,” same-sex married couples must file Montana state taxes as if they were single.
Nothing in Nebraska law states explicitly who is required or permitted to file a joint return. The previous instructions to Form 1040N stated that, “Your Nebraska filing status must be the same as your Federal filing status.” However, based on a state constitutional ban on recognition of same-sex marriage in Nebraska, the Nebraska Department of Revenue has issued a ruling that individuals in a same-sex marriage must file Nebraska state taxes as if they were single.
North Carolina statute § 105-134.1 defines “married individual” as follows: “Married individual. – An individual who is married and is considered married as provided in section 7703 of the Code.”
However, given that there is a state constitutional ban on recognition of same-sex marriage in North Carolina, the North Carolina Department of Revenue has announced that same-sex married couples must file North Carolina state taxes as if they were single.
North Dakota statute § 57-38-30.3 states as follows: “The tax for individuals is equal to North Dakota taxable income multiplied by the rates in the applicable rate schedule in subdivisions a through d corresponding to an individual’s filing status used for federal income tax purposes.”
Nevertheless, given that there is a state constitutional ban on recognition of same-sex marriage in North Dakota, the state tax commissioner has now indicated that same-sex couples must file North Dakota state taxes as if they were single. A new Schedule ND-1S has been created to make the necessary calculations.
Ohio statute § 5747.01 states as follows: “Except as otherwise expressly provided or clearly appearing from the context, any term used in this chapter that is not otherwise defined in this section has the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes or if not used in a comparable context in those laws, has the same meaning as in section 5733.40 of the Revised Code.”
Nevertheless, given that there is a state constitutional ban on recognition of same-sex marriage in Ohio, the state department of taxation takes the position that same-sex married couples must file Ohio state taxes as if they were single.
Oklahoma statute § 68-2355 defines the individuals required to use a joint return as follows: “Married individuals filing jointly and surviving spouse to the extent and in the manner that a surviving spouse is permitted to file a joint return under the provisions of the Internal Revenue Code and heads of households as defined in the Internal Revenue Code not deducting federal income tax.”
Nevertheless, the state tax commission takes the position that individuals in same-sex marriages must file must file Oklahoma state taxes as if they were single.
The Oklahoma Tax Commission’s position will presumably have to be revisited unless the appeal of the decision striking down the ban on same-sex marriages is successful.
South Carolina statute § 12-6-40 states as follows: “For purposes of this title, ‘Internal Revenue Code’ is deemed to contain all changes necessary for the State to administer its provisions.”
While the language is somewhat opaque, it appears that this is intended to mean that terms in the South Carolina Code relating to taxes will have the same meaning as the same terms in the Internal Revenue Code. This would presumably include the terms “husband” and “wife” in § 12-6-5000, which states as follows: “If both a husband and wife are residents, and if their federal taxable income is determined on a joint federal return, their South Carolina taxable income must be reported and taxed on the basis of a joint South Carolina income tax return.”
However, given that there is a state constitutional ban on recognition of same-sex marriage in South Carolina, the instructions for the South Carolina tax return state that, “South Carolina does not recognize same sex marriage. If a same sex couple is able to file a federal return with a married status, they must file as single or head of household for South Carolina purposes.”
Although Utah does not have a separate rate structure for married couples, marital status is nevertheless used in determining the number of exemptions, the taxability of employer-provided health care, and the like. Initially, Utah Tax Commission Chairman Bruce Johnson declared that married same-sex couples could file Utah state income taxes as married, based on conformity with federal law. Then on October 9, 2013, the Utah Tax Commission later reversed that decision citing constitutional grounds. On January 15, 2014, the Utah Tax Commission reversed itself yet again, and will allow same-sex married couples to file as married.
Virginia statute § 58.1-301 states as follows: “Any term used in this chapter shall have the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes, unless a different meaning is clearly required.”
However, there is a state constitutional ban on recognition of same-sex marriage in Virginia. Accordingly, the Virginia Department of Taxation has issued Tax Bulletin 13-13 (November 8, 2013), providing that same-sex married couples must file Virginia state taxes as if they were single.
The Virginia Department of Taxation’s position will presumably have to be revisited unless the appeal of the decision striking down the ban on same-sex marriages is successful.
West Virginia statute § 11-24-3 states as follows: “Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes, unless a different meaning is clearly required by the context or by definition in this article.”
Nevertheless, the state department of taxation takes the position that same-sex married couples must file West Virginia state taxes as if they were single.
Wisconsin statute § 71.01(8) states as follows: “’Married person’” or ‘spouse’ means a person determined under section 7703 (a) of the internal revenue code to be married, unless the context requires otherwise.
Nevertheless, the state Department of Revenue takes the position that individuals in same-sex marriages must file Wisconsin state taxes must file as if they were single.